A-1471-83
Canadian Pacific Limited (Appellant)
v.
Canadian Transport Commission (Respondent)
Court of Appeal, Thurlow C.J., Heald and
Mahoney JJ.—Toronto, December 5; Ottawa,
December 18, 1984.
Judicial review — Statutory appeals — Railways —
Destruction of structure previously used as station without
Canadian Transport Commission permission — Commission
decision affirming jurisdiction over "removal", granting leave
and requesting Attorney General of Canada to prosecute
appellant, before criminal court, for violation of Railway Act
in destroying station — Appellant ordered to pay costs —
Appeal under National Transportation Act s. 64(2) on "ques-
tion of mixed fact and law" whether Commission erred in
determining permission required prior to demolition — Sub
sidiary question whether structure "station" within Railway
Act ss. 119 and 120 — Prosecution of charges laid in criminal
court not proceeded with pending disposition of present appeal
— Court declining to answer questions as all issues before
criminal court — Decision of this Court not binding on crimi
nal court nor res judicata — To question authority's decision
to prosecute simply other way of asking if person charged
guilty — Function of criminal court to answer such question
— Civil courts ought not to entertain applications for judicial
review of, or appeals from, decisions to prosecute even if
having jurisdiction — Potential for parallel proceedings in
civil and criminal courts obvious and to be discouraged —
Decision favourable to appellant herein not necessarily leading
to withdrawal of prosecution as neither Attorney General nor
Queen bound thereby — Decision at best advisory — Binding
opinion, obtainable under National Transportation Act s. 55,
not sought by Commission — Commission's discretion as to
award of costs not disturbed but Commission reminded discre
tion to be exercised judicially — Pursuant to National Trans
portation Act, Court certifying opinion Commission not having
erred in law or exceeded jurisdiction in requesting prosecution
and granting leave to prosecute — No opinion certified as to
any assumption or finding of law or mixed law and fact
underlying decision to make request or grant leave — National
Transportation Act, R.S.C. 1970, c. N-17, ss. 48 (as am. by
S.C. 1977-78, c. 22, s. 18(2)), 55 (as am. by R.S.C. 1970 (2nd
Supp.), c. 10, s. 65), 64(2),(5) (as am. idem), 73 — Railway
Act, R.S.C. 1970, c. R-2, ss. 119(1),(2),(3), 120, 395, 399(3),(4)
Federal Court Rules, C.R.C., c. 663, R. 1312.
COUNSEL:
D. S. Maxwell, Q.C. and Katharine F. Braid
for appellant.
Wendy E. Burnham for respondent.
D. B. Leibson for Corporation of the City of
Toronto.
C. W. Lewis, Q.C. for John C. Turner.
William H. Roberts for West Toronto Junc
tion Historical Society.
Janet E. Minor for Ontario Heritage Founda
tion, Architectural Conservancy of Ontario
and Ontario Historical Society.
SOLICITORS:
Law Department, Canadian Pacific, Mon-
treal, for appellant.
Legal Services, Canadian Transport Com
mission, Hull, Quebec, for respondent.
City Solicitor, Corporation of the City of
Toronto, Toronto, for Corporation of the City
of Toronto.
Miller, Thompson, Sedgewick, Lewis &
Healy, Toronto, for John C. Turner.
William H. Roberts, Toronto, for West
Toronto Junction Historical Society.
Ministry of Attorney General, Toronto, for
Ontario Heritage Foundation, Architectural
Conservancy of Ontario and Ontario Histori
cal Society.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal, by leave under
subsection 64(2) of the National Transportation
Act, R.S.C. 1970, c. N-17 [as am. by R.S.C. 1970
(2nd Supp.), c. 10, s. 65], on questions of law and
jurisdiction. Prior to October, 1979, the structure
known as the West Toronto Station was used by
the appellant, hereafter "CP", as a railway station
in the conventional sense. Thereafter, passenger
trains between Toronto and Sudbury moved via
Canadian National lines and the structure was
"closed and boarded up and remained vacant and
unused thereafter". On November 25, 1982, CP
caused the structure to be demolished without
obtaining the prior consent of the respondent,
hereafter "the Commission". The Commission,
acting under authority of section 48 of the Nation
al Transportation Act [as am. by S.C. 1977-78,
c. 22, s. 18(2)], convened a hearing to deal with:
1. CP's application, dated October 21, 1981, under sections 120
and 129 of the Railway Act, proposing to remove the West
Toronto Station;
2. CP's withdrawal of that application by telex dated Novem-
ber 23, 1982; and
3. the Commission's jurisdiction over the removal.
Following the hearings, the Commission deter
mined that it did have jurisdiction over the remov
al and made the following order:
We have reasonable ground for belief that Canadian Pacific
and an indeterminate number of persons acting for or employed
by it agreed and directed that the West Toronto Station be
destroyed without having first obtained the required permission
or exemption from the Railway Transport Committee, all of
which constitutes an act contrary to the Railway Act and in
violation thereof. Accordingly, we are requesting the Attorney
General of Canada to institute and prosecute proceedings, on
behalf of Her Majesty, against Canadian Pacific (and such of
its directors, officers, employees, agents and contractors who
may be found to have planned or participated in, or gave
approval for, the commission of the aforementioned violation of
the Railway Act) for the imposition and recovery of the penalty
or penalties provided under the Railway Act for such violation.
To the extent that leave of this Commission is required to carry
out the prosecution just described, leave is hereby granted.
That order was made April 28, 1983.
While it does not appear on the record, the
Court was advised at the hearing by CP's counsel
that charges were subsequently laid in Montreal
and that the prosecution has not proceeded pend
ing disposition of this appeal. The Commission
also ordered CP to pay certain costs and, in that
respect, subsequently stayed its order pending dis
position of this appeal.
The authority of the Commission to award costs
is to be found in section 73 of the National
Transportation Act. Its authority to make the
balance of the order is to be found in subsections
399(3) and (4) of the Railway Act, R.S.C. 1970,
c. R-2, which are to be read with section 395.
395. Any company that, or any person who, being a director
or officer thereof, or being .a receiver, trustee, lessee, agent, or
otherwise acting for or employed by such company, or being a
contractor or other person having to do with the railway or
other works of the company, does, causes or permits to be done,
any matter, act or thing contrary to this or the Special Act, or
to the orders, regulations, or directions of the Governor in
Council, or of the Minister, or of the Commission, made under
this Act, or omits to do any matter, act or thing, thereby
required to be done on the part of any such company or person,
is, if no other penalty is provided in this or the Special Act for
any such act or omission, liable for each such offence to a
penalty of not less than twenty dollars, and not more than five
thousand dollars, in the discretion of the court before which the
same is recoverable.
399... .
(3) Whenever the Commission has reasonable ground for
belief that any company, or any person or corporation is
violating or has violated any of the provisions of this Act, or
any order, rule or regulation of the Commission, in respect of
which violation a penalty may be imposed under this Act, the
Commission may request the Attorney General of Canada to
institute and prosecute proceedings, on behalf of Her Majesty,
against such company or person or corporation for the imposi
tion and recovery of the penalty provided under this Act for
such violation, or the Commission may cause an information to
be filed in the name of the Attorney General of Canada for the
imposition and recovery of such penalty.
(4) No prosecution shall be had against the company for any
penalty under this Act, in which the company might be held
liable for a penalty exceeding one hundred dollars, without the
leave of the Commission being first obtained.
This appeal was argued by the parties and inter-
venors on the pivotal question whether or not the
Commission had erred in law in determining that
its permission had been required prior to demoli
tion of the structure. That, in turn, depends upon
whether the structure was, immediately prior to its
demolition, a "station" within the contemplation
of sections 119 and/or 120 of the Railway Act.
That was put to the Court as a question of mixed
fact and law. The Commission found that it had
been a station at the relevant time and, while
accepting CP's argument that section 120 did not
require its permission before its removal, found
that subsections 119(1), (2) and (3) did.
119. (1) If any deviation, change or alteration is required by
the company to be made in the railway, or any portion thereof,
as already constructed, or as merely located and sanctioned, a
plan, profile and book of reference of the portion of such
railway proposed to be changed, showing the deviation, change
or alteration proposed to be made, shall, in like manner as
hereinbefore provided with respect to the original plan, profile
and book of reference, be submitted for the approval of the
Commission, and may be sanctioned by the Commission.
(2) The plan, profile and book of reference of the portion of
such railway so proposed to be changed shall, when so sanc
tioned, be deposited and dealt with as hereinbefore provided
with respect to such original plan, profile and book of reference.
(3) The company may thereupon make such deviation,
change, or alteration, and this Act applies to the portion of such
line of railway, at any time so changed or proposed to be
changed, in the same manner as it applies to the original line.
120. The company shall not, at any time, make any change,
alteration or deviation in the railway, or any portion thereof,
until the provisions of section 119 are fully complied with, nor
remove, close, or abandon any station, or divisional point nor
create a new divisional point that would involve the removal of
employees, without leave of the Commission; and where any
such change is made the company shall compensate its
employees as the Commission deems proper for any financial
loss caused to them by change of residence necessitated
thereby.
On the appeal, CP argued that the Commission
had erred in finding that the structure was a
station and that section 119 required its consent
and that it was right in concluding that section 120
did not. Counsel for the Commission argued that it
had been entirely correct. The intervenors, except
Turner, argued that it had been correct in finding
the structure to have been a station and that, even
if it had erred in applying section 119, it had also
erred in not applying section 120 with the result
that the Commission had been correct, although
perhaps for the wrong reason. I did not understand
the argument advanced for the intervenor Turner
when it was presented and remain mystified; he
did, however, support the Commission in its result.
In my view, the less said by this Court about the
questions raised on this appeal, the better. All of
the issues raised here are before the criminal court
and will have to be dealt with by it, along with a
number of others, in disposing of the charge or
charges laid. No decision by this Court would be
binding on it nor res judicata. CP ought not to be
permitted, after the prosecution has begun, even
with the evident concurrence of the Commission
and the intervenors, to question, in this Court,
particular conclusions of law or mixed fact and
law necessarily reached by the Commission on its
way to its decision to request, and grant leave for,
the prosecution.
The statute-books, both federal and provincial,
are rife with examples of the requirement that
leave of some authority be obtained before a pros
ecution may be undertaken. I see no difference in
quality between a decision to grant such leave and
a decision to request a prosecution, nor a decision
to lay the information itself had the Commission
chosen to. All are of a piece with the decision
every authority having responsibility for enforce
ment of the law and having the option to prosecute
violations must make. To ask if the authority erred
or not in deciding to prosecute is simply another
way of asking if the person charged is guilty of the
alleged offense or not. It is the function of the
criminal court to answer that question. A civil
court ought not to entertain applications for judi
cial review of, or appeals from, decisions to prose
cute even if, strictly speaking, it has the jurisdic
tion to do so. The result can be no more than an
embarrassment to the criminal court charged with
disposing of the prosecution. The potential for
parallel proceedings in the civil and criminal
courts is obvious and to be discouraged.
It may be argued that a decision here, favour
able to CP, would lead to withdrawal of the pros
ecution. That may be but it is not necessarily so.
Neither the Attorney General, who has instituted
the prosecution, nor Her Majesty, in whose name
it has been instituted, would be bound by that
decision. A decision by this Court would, at best,
be an advisory opinion, not binding on the author
ity now vested with responsibility for the prosecu
tion. If the Commission had wanted a binding
opinion, it had a procedure available to it under
section 55 of the National Transportation Act [as
am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65]
before responsibility for prosecution passed to
other hands.
The award of costs was not specifically
appealed. I have some concern that the Commis
sion may have had punitive considerations in mind
in exercising its discretion; however, on reflection,
think it best not to disturb the award. I would
observe that the Commission's discretion to award
costs must be exercised judicially. There is ample
authority for what that entails which the Commis
sion might find instructive.
As to costs of this appeal, the applicable rule,
Rule 1312 [Federal Court Rules, C.R.C., c. 663],
provides that party and party costs are not to be
awarded in the absence of special reasons. None
appear here.
Pursuant to subsection 64(5) of the National
Transportation Act [as am. by R.S.C. 1970 (2nd
Supp.), c. 10, s. 65] I would certify to the Com
mission the opinion that it did not err in law or
exceed its jurisdiction in requesting the Attorney
General of Canada to prosecute nor in granting
leave for that prosecution as set forth in its deci
sion made April 28, 1983. I would, however, cer
tify no opinion as to any assumption or finding of
law or mixed law and fact underlying the decision
to make the request or grant the leave.
THURLOW C.J.: I concur.
HEALD J.: I concur.
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